Sonia Sotomayor's Radical Judicial Activism

This week, the Senate Judiciary Committee approved a bill requiring TV access to Supreme Court arguments. Justice Sonia Sotomayor isn’t waiting: She made her debut on Sesame Street this week. Though she and Maria were just trying to enjoy “un cafecito,” they were interrupted by Baby Bear, who demanded a judgment in his case against Goldie Locks, who had (as the record has long reflected) broken his tiny chair during a most flagrant trespass quare clausum fregit.

Sotomayor listened to the twin arguments and suggested that Goldilocks take her personal glue, fix the chair, and “then the two of you can live happily ever after.”

Now this is all very well, but what sort of example does it set for the young? Isn’t it the worst sort of unprincipled activism? Why did she not turn to the wisdom of the Founders? Not long ago I was sternly lectured by Professor Michael Ramsey of the University of San Diego for an irreverent post about Justice Antonin Scalia’s opinion in United States v. Jones. Scalia in that case tried to decide whether government could put a GPS transmitter in a suspect’s car without a warrant. He claimed to find guidance in 18th-century English tort law, which allowed him to create an “originalist” rule that bypasses the Court’s carefully developed 20th-century precedent. That scamp Sam Alito (any resemblance to Ernie purely coincidental) mocked his senior colleague for imagining some sort of colonial-era law-enforcement op involving a “tiny constable” hidden inside a small compartment of a horse-drawn carriage.

Ramsey rebuked me for joining in the laughter. The only alternative to Scalia’s method must be “to have judges decide for themselves what the best modern approach should be, taking into account modern circumstances and sensibilities (which basically means doing what they think best),” he explained.

Is there any better description of Sotomayor’s scandalous reasoning in Bear v. Locks? Not a word about the Founding-era law of remedies. Sure, we have furniture glue now, but would it have been available in 1789? If not, then the Court should have been limited to ordering that Locks be flogged. And the Justice did not even inquire whether the bear was armed.

Not long ago, Fox Business pointed out the socialistic philosophy behind the Muppets. These godless homunculi are a threat, and now they have enlisted the courts in their relentless anti-American crusade. It’s fine for justices to appear at a Koch-brothers-sponsored right-wing knees-up. But Sotomayor’s conduct is scandalous.

About the Author

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.com. His book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.